High Court decision on necessity of arrest

Charlotte Ventham represented West Midlands Police in DE v Chief Constable of West Midlands Police [2023] EWHC 146 (KB): an appeal to the High Court against the dismissal of the Appellant’s false imprisonment claim at trial. The case provides a helpful illustration of when it may be justified to rely on the s24(5)(e) PACE “prompt and effective investigation” criterion where the arresting officer’s sole reason for believing the arrest to be necessary is an intention to impose bail conditions.

The Appellant was arrested on suspicion of harassment in September 2013 as a result of his correspondence with various parties in an attempt to clear his son’s name in the light of allegations of sexual misconduct against him following a school camping trip. The arresting officer’s evidence was that he believed arrest to be necessary because the Appellant needed to be questioned by the police and thereafter made subject to bail conditions preventing him from contacting the alleged victims. Importantly, the officer accepted that the questioning itself could have been conducted effectively on a voluntary basis. However, he was concerned as to how the Appellant might react to formal police intervention and considered that there was a need to protect the alleged victims – and therefore the investigation – from any potential interference by the imposition of non-contact bail conditions.

The principal issue on appeal was whether the Judge had erred in finding, in accordance with the well-established test in Hayes v Chief Constable of Merseyside [2012] 1 WLR 517, that the officer’s belief that it was necessary to arrest the Appellant was objectively reasonable on the basis of the information known to him at the time.

The Appellant’s main arguments included that he was a man of good character; he had complied with a request to attend at the police station on the day of his arrest; he had complied with an earlier harassment warning in that he had ceased contact with the party to whom the warning related; there was no immediate physical threat to the alleged victims and no urgency to the arrest. For all of those reasons, it was said, the officer should have chosen the voluntary interview option, coupled, if needs be, with a further formal harassment warning. The Appellant further argued that a purely speculative belief that bail conditions might be necessary to allow an effective investigation was insufficient to satisfy s24(5)(e) PACE.

Hill J rejected all of the Appellant’s arguments, concluding that the trial Judge’s factual findings as to the arresting officer’s state of knowledge and decision-making justified the finding that the second (objective) limb of the Hayes test was satisfied. In so doing, the Court:

•    underlined the extent to which cases on necessity turn on their own facts; 
•    reiterated that cursory consideration (in the form of summary rejection) of a non-arrest route may be sufficient; and
•    commented on the judgment of Jay J in R (TL) v Chief Constable of Surrey [2017] EWHC 129 (Admin) at [50]-[52] (hitherto the key authority on the interplay of s24(5)(e) and bail conditions), observing that these paragraphs “reflect a ‘spectrum’ between an officer who considers bail conditions at the most general level but who does not think what they might be in a particular case; and an officer who wishes to impose specific conditions in order to protect a witness/complainant from intimidation, which (if it took place) would undermine an effective investigation” (where the first approach may well fall foul of the s24(5)(e) safeguards, but the latter approach would be different).

The judgment can be found here.